As seen in The Goods published by the Kentucky Association of Manufacturers.
Based on the recently conducted 2012 Annual Manufacturing Wage and Benefit Survey, 52% of Kentucky manufacturers plan to hire between one and 19 employees in 2013. This is great news. However, if you are one of the businesses looking to hire qualified candidates and expand, this can be a challenging time. Beyond the goal of hiring the most qualified person, adding to your workforce raises issues of how to recruit, where to recruit and what laws apply to your expanded business. The following highlights some of the latest trends in hiring and provides some recommendations for employers.
Pay attention to numbers. Of the 184 employers that responded to the survey, 39% have fewer than 100 employees, and several of those likely have under 50 employees. This means that employers who add enough employees may find themselves for the first time subject to certain state and federal employment laws. For example, only employers with eight or more employees are subject to the non-discrimination provisions of the Kentucky Civil Rights Act. Similarly, employees with 50 or more employees are subject to the Family and Medical Leave Act (“FMLA”). Under the new Affordable Care Act, employers with 50 or more full-time employees will be required to provide health care coverage or pay a penalty starting January 1, 2014.
Evaluate current policies and training. This point should not be overlooked. Evaluate existing handbooks and policies for legal compliance. For example, if the employer is newly covered by the FMLA, employees must be provided notice of that right, and if you have a handbook, such notice must be included. Similarly, this is a good time to consider employee training. When was the last time you conducted sexual harassment training?
Use of social media. If there ever was a hot topic, this is one of them. Employers are using social media to recruit and screen applicants for employment. Many employers are convinced that using social media puts them in touch with qualified applicants that they otherwise would not reach. However, using social media to screen applicants can invite problems. It opens the door for employers to obtain information that may be inaccurate or relates to a protected characteristic such as religion or disability. Once the employer has this information, it is possible to infer that the information played a role in the hiring decision. Some employers are attempting to minimize this risk by deliberately separating the person who is screening social media from the decision-making process. This is an emerging area and employers should exercise caution.
Drug testing. Drug testing is a key component of maintaining a safe and productive work environment for many employers. Generally, Kentucky employers utilize pre-employment, random, post-accident, and reasonable suspicion drug testing. Remember, a pre-employment drug test is a “medical examination” under the Americans with Disabilities Act. This means it can only be required after the applicant receives a conditional job offer, but before the employee starts work. Finally, drug testing policies should be in writing and acknowledged in writing by the employee.
Hiring veterans. Employers should not overlook various veterans programs. The Veterans’ Employment and Training Service (“VETS”) provides veterans job training and placement services. The Kentucky VETS office in Frankfort works directly with employers to connect them to veterans with the needed skill set. Under some circumstances, employers who employ veterans receive tax credits and reimbursement for the salary cost for the first six to nine months.
Use of criminal background checks. On April 25, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued new Enforcement Guidance (“Guidance”) on the use of criminal background checks in employment decisions. Though having a criminal record is not explicitly protected under Title VII, the EEOC finds that some hiring practices may violate Title VII under a “disparate impact” theory. This is because national data suggests that criminal record exclusions have a disparate impact on race and national origin. Because of this, employers who decide to exclude an applicant from employment because of a criminal background must demonstrate that the reason for excluding the applicant is “job related” and “consistent with business necessity.” Factors relevant to this determination are: (1) the nature and gravity of the offense or conduct; (2) the time that has passed since the offense or conduct and/or completion of the sentence; (3) the nature of the job held or sought. The new Guidance requires an employer to show that its policy operates to effectively link specific criminal conduct, and its dangers, with the risks inherent in the duties of a particular position.
So what does this mean for employers? Watch out for blanket exclusions based on a criminal record. The EEOC wants you to develop a targeted screen considering at least the nature of the crime, the time elapsed, and the nature of the job, and then provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job related and consistent with business necessity. The individualized assessment requires the employer to provide notice to the individual that he or she has been screened out because of a criminal conviction. It also provides an opportunity for the individual to demonstrate that the exclusion should not be applied due to his particular circumstances, as well as a chance for consideration by the employer as to whether the additional information provided by the individual warrants an exception to the exclusion and shows that the policy as applied is not job related and consistent with business necessity.
